Three Strikes

Effective March 7, 1994, Penal Code Section 667 was amended to provide for a ”Three Strikes You’re Out” law. On November 8, 1994, the voters adopted Proposition 184, effective November 9, 1994, to add a seemingly identical version of a ”Three Strikes You’re Out” law in a new Penal Code Section 1170.12 . It appears that both versions of ”Three Strikes” are currently in effect.

A person who is convicted of a felony and has one qualifying ”strike” will be sentenced to a doubling of the term that otherwise would apply or, if a life sentence otherwise would apply, to a doubling of the minimum term of that life sentence, while a person who is convicted of a felony and has two or more qualifying ”strikes” will be sentenced to a life sentence with a minimum term of 25 years.

In a prosecution for a current offense committed on or after March 8, 2000, a prior serious/violent felony conviction that qualifies as a ”strike” for these purposes is: (1) a prior conviction for a serious felony, as defined in Penal Code Section 1192.7(c) , as that statute existed on March 8, 2000; (2) a violent felony, as defined in Penal Code Section 667.5(c) , as that statute existed on March 8, 2000; (3) an out-of-state conviction that includes all of the elements of a Penal Code Section 1192.7(c) or 667.5(c) felony, as those statutes existed on March 8, 2000; or (4) a juvenile adjudication of an offense listed under Welfare and Institutions Code Section 707(b) , as that statute existed on March 8, 2000, that was committed when the defendant was 16 years of age or older.

A prior offense may constitute a ”qualifying prior” for these purposes, if a guilt verdict was reached or a plea entered on the prior offense before the commission of the current offense, even if judgment is pronounced thereafter. One exception to this rule, however, is if the prior offense is of a ”wobbler,” because only the pronouncement of sentence itself determines whether it is a felony or misdemeanor conviction.

The ”Three Strikes You’re Out” sentencing scheme, as well as other aspects of the law discussed in this text, applies when a defendant is presently convicted of a felony, and has one or more qualifying ”strikes.” The present conviction may be of any felony, and is not limited to a ”serious” or ”violent” felony. A ”conviction” occurs at the time of the entry of a guilty or nolo contendere plea or the verdict of guilty.

In a current ”wobbler” case in which a qualifying ”strike” is alleged, the ”Three Strikes” law may be circumvented if the magistrate reduces the ”wobbler” charge to that of a misdemeanor at or before the preliminary hearing or before the filing of a Penal Code Section 872 order holding the defendant over for trial, pursuant to Penal Code Section 17(b)(5). The trial court also may reduce the ”wobbler” to a misdemeanor at the time of sentencing, thus rendering the cause no longer a ”Three Strikes” case.

A prior serious/violent felony conviction may qualify as a ”strike” under the ”Three Strikes” law, regardless of how long ago it occurred. There is no ”washout” period, as exists for other prior-felony enhancements. However, to qualify as a ”strike,” the prior conviction must have occurred before the commission of the current felony.

If the defendant has two prior convictions that could qualify as ”strikes,” there is no requirement that they be brought and tried separately before they can be ”qualifying priors.”

The prior felony conviction qualifies as a “strike,” even if it was subsequently set aside pursuant to Penal Code Section 1203.4 However, if the defendant was placed on probation and the plea was set aside after successful completion of probation, and the case was then dismissed pursuant to Penal Code Section 1385 in the interest of justice, it may not be used as a “strike.”

In a prosecution for a current offense committed on or after March 8, 2000 (the effective date of Proposition 21 ), a prior felony conviction may qualify as a ”strike” under the ”Three Strikes” law if it is for a ”serious felony” as defined in Penal Code Section 1192.7(c) , as that statute (and probably any other statute mentioned therein) existed on March 8, 2000. Those ”serious felonies” are as follows:

Murder or voluntary manslaughter; Mayhem; Rape; Sodomy by force, violence, duress, menace, threat of great bodily injury, or fear of immediate and unlawful bodily injury on the victim or another person; Oral copulation by force, violence, duress, menace, threat of great bodily injury, or fear of immediate and unlawful bodily injury on the victim or another person; Lewd or lascivious acts on a child under the age of 14 years. For this purpose, the lewd act is not limited to those specified in Penal Code Section 288(a) or (b) , but may be shown by some other felony that necessarily involved a lewd act per se on a child under 14, regardless of intent, such as oral copulation with a child under 14; Any felony punishable by death or imprisonment in the state prison for life, that is, when the punishment for the underlying felony itself is life imprisonment or death (and not, for example, merely because some other law, such as ”Three Strikes,” would impose a life sentence due to other circumstances); Any felony in which the defendant personally inflicted great bodily injury on any person, other than an accomplice, or any felony in which the defendant personally used a firearm;

1. Attempted murder;
2. Assault with intent to commit rape or robbery;
3. Assault with a deadly weapon or instrument on a peace officer;
4. Assault by a life prisoner on a noninmate;
5. Assault with a deadly weapon by an inmate;
6. Arson;
7. Exploding a destructive device or any explosive with intent to injure;
8. Exploding a destructive device or any explosive causing bodily injury, great bodily injury, or mayhem;
9. Exploding a destructive device or any explosive with intent to murder;
10. Any burglary of the first degree;
11. Robbery or bank robbery;
12. Kidnapping;
13. Holding of a hostage by a person confined in a state prison;
14. Attempt to commit a felony punishable by death or imprisonment in the state prison for life;
15. Any felony in which the defendant personally used a dangerous or deadly weapon;
16. Selling, furnishing, administering, giving, or offering to sell, furnish, administer, or give to a minor any heroin, cocaine, phencyclidine (PCP), or any methamphetamine-related drug, or any of the precursors of methamphetamines;
17. Sexual penetration where the act was accomplished against the victim’s will by force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person;
18. Grand theft involving a firearm;
19. Carjacking;
20. Any felony offense that would constitute felonious criminal street gang activity,
21. Assault with the intent to commit mayhem, rape, sodomy, or oral copulation;
22. Throwing acid or flammable substances;
23. Assault with a deadly weapon, firearm, machinegun, assault weapon, or semiautomatic firearm or assault on a peace officer or firefighter;
24. Assault with a deadly weapon against a public transit employee, custodial officer, or school employee;
25. Discharge of a firearm at an inhabited dwelling, vehicle, or aircraft;
26. Commission of rape or penetration by a foreign object in concert with another person;
27. Continuous sexual abuse of a child;
28. Shooting from a vehicle;
29. Intimidation of victims or witnesses;
30. Terrorist threats;
31. Any attempt to commit a crime on this list other than an assault;
32. Any violation of the statute that provides additional punishment for the use or discharge of a firearm in certain felonies;
33. Any conspiracy to commit an offense described in this list; and
34. The following felonies specified by Penal Code Section 1192.8(a) as belonging in the list of serious felonies under Penal Code Section 1192.7(c) if they involve the personal infliction of great bodily injury on any person other than an accomplice, or the personal use of a dangerous or deadly weapon:
    1. Gross vehicular manslaughter while intoxicated;
    2. Vehicular manslaughter with gross negligence or in violation of Vehicle Code Section 23140, 23152, or 23153 ;
    3. Vehicular manslaughter involving a vessel, with gross negligence or in violation of Harbors and Navigation Code Section 655(b), (c), (d), (e), or (f) ;
    4. Willful flight or attempt to elude a peace officer;
    5. Reckless driving; and
    6. Driving while under the influence of alcohol or drugs.

In a prosecution for a current offense committed on or after March 8, 2000 (the effective date of Proposition 21 ), a prior felony conviction may qualify as a ”strike” under the ”Three Strikes” law if it is for a ”violent felony” as defined in Penal Code Section 667.5(c) , as that statute (and probably any other statute mentioned therein) existed on March 8, 2000. Those ”violent felonies” are as follows:

1. Murder or voluntary manslaughter;
2. Mayhem;
3. Rape;
4. Sodomy by force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person;
5. Oral copulation by force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person;
6. Lewd acts on a child under the age of 14 years;
7. Any felony punishable by death or imprisonment in the state prison for life, that is, when the punishment for the underlying felony itself is life imprisonment or death (and not, for example, merely because some other law, such as ”Three Strikes,” would impose a life sentence due to other circumstances);
8. Any felony in which the defendant inflicted great bodily injury on any person other than an accomplice, that has been charged and proved as provided for in Penal Code Section 12022.7 or 12022.9 on or after July 1, 1977 (or as specified prior to July 1, 1977, in Penal Code Sections 213, 264, and 461 ), or any felony in which the defendant used a firearm, which use has been charged and proved as provided in Penal Code Section 12022.5 or 12022.55 ;
9. Any robbery;
10. Arson;
11. Sexual penetration where the act was accomplished against the victim’s will by force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person;
12. Attempted murder;
13. Explosion of a destructive device with intent to commit murder or that causes death, mayhem, or bodily injury;
14. Kidnapping;
15. Assault with the intent to commit mayhem, rape, sodomy, or oral copulation;
16. Continuous sexual abuse of a child;
17. Carjacking;
18. Rape or penetration by a foreign object committed in concert with another person;
19. Extortion that would constitute felonious criminal street gang activity,
20. Threats to victims or witnesses that would constitute felonious criminal street gang activity,
21. Any burglary of the first degree in which it is charged and proved that another person, other than an accomplice, was present in the residence during the commission of the burglary; and
22. Any violation of the statute that provides additional punishment for the use or discharge of a firearm in certain felonies.

If a prior conviction in another jurisdiction qualifies as a ”strike,” as discussed below, it may be used for either ”second-strike” or ”third-strike” sentencing for ”Three Strikes” purposes.

Under Penal Code Sections 667(d)(2) and 1170.12(b)(2) , a prior conviction in another jurisdiction qualifies as a ”strike” for ”Three Strikes” purposes, as discussed above, if it was for an offense that:

1. If committed in California, is punishable by imprisonment in the state prison; and
2. Includes all of the elements of the particular felony as defined in Penal Code Section 1192.7(c) or 667.5(c) , as those statutes existed on the relevant date

To determine whether an out-of-state offense includes all of the elements of the particular felony as defined in Penal Code Section 1192.7(c) or Penal Code Section 667.5(c) , the trier of fact, which is probably the court, may examine not only the elements of the offenses, but also the record of conviction for the out-of-state felony, to determine whether the defendant actually committed a California ”serious” or ”violent” felony.

Under Penal Code Sections 667(d)(3) and 1170.12(b)(3) , a prior juvenile adjudication qualifies as a ”strike” for ”Three Strikes” purposes, as discussed above, if:

1. The juvenile was 16 years of age or older when he or she committed the prior offense;
2. The prior offense was either: (a) A ”serious” or ”violent” felony,
   1. An out-of-state conviction for a “serious” or violent felony; or
   2. An offense listed in Welfare and Institutions Code Section 707(b)
3. The juvenile was found to be a fit and proper subject to be dealt with under the juvenile court law; and
4. The juvenile was adjudged a ward of the juvenile court within the meaning of Welfare and Institutions Code Section 602 because the person committed an offense listed in Welfare and Institutions Code Section 707(b) .

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